MUTHALAMMAL Vs. VEERARAGHAVALU NAYUDU

JUDGEMENT

(1.) THE appellant, whose another had filed a suit in 'forma pauperis' against her husband's brother for past and future maintenance at the rate of Rs. 100 per year to be made a charge on the family properties, was on her death brought on record as the legal representative of her mother in the trial court. Both the lower courts have dismissed the suit on the ground that the appellant's mother's claim for maintenance against her husband's estate in the hands of the coparcener was a personal claim which does not survive to her legal representative on her death.

(2.) A certain lady filed a suit against her husband for maintenance and while the suit was pending she died. But before her death she purported to assign her rights to past maintenance to her father, and on her death, the father filed an application to be brought on record as the legal representative of the daughter. The learned Judge held that the question of the original plaintiff's right to maintenance was a personal right and since it was not a suit to recover an ascertained sum, a transfer of such a personal right could not be recognised in law. The claim of an unliquidated and unascertained amount due to a Hindu lady by way of maintenance could not be the subject of an assignment.

(3.) UNDER the Mitakshara law, it is clear that the wife of a member of a joint family, though a member of the family as such, is not a coparcener in any sense of the term. Her right to maintenance has therefore to be ascertained by a consideration of the rights which' she has to it and the obligation which her husband, or husband's coparceners, have to discharge. It is also well settled that the widow of an undivided coparcener is not entitled to claim from the survivor as maintenance more than the proceeds of the share which would have been allotted to her husband had there been a partition during his lifetime. What, therefore, is the nature of her right to maintenance in the share of her husband in the joint family property? The contention urged on behalf of the appellant is that according to Hindu law -givers, originally the wife and the husband had common ownership of property and her right to maintenance had to be traced to such ownership. It is by subsequent evolution that the ownership in the property has ceased to exist and in its place a maintenance right has been substituted. The nature of the claim is thus described in Apastamba's Dharma -sutras, quoted at page 234 of Golapchandra Sarkar Sastri's Hindu Law, 8th edition: